The Court thought that there was no foundation for either of the objections. That the first was answered by the positive. words of the statute. And that, as to the latter, several penalties for offences of a similar nature may be recovered in one action, as in the instance of bribery, where the defendant is frequently charged in the same declaration with bribing different persons. Rule discharged (a). (a) Vid. R. King, q.t. v. Cole, post. 6 vol. 640. 1791. HOLLAND qui tam against BOTHMAR. ATKINSON, Administratrix, against BAKER. THIS Friday, May 20th. auter vie be li mited to a man, his heirs, exministrators, and ecutors, ad assigns, and be HIS was an action of detinue to recover certain indentures of If an estate pour bargain and sale and release, and a certain memorandum in writing. The declaration alleged, that T. Foster, being seised for his own life of a certain freehold estate, conveyed it by lease and release to H. Williams, his heirs and assigns. That Williams, not devised, it by a memorandum in writing, and signed by him according to descends to the the form of the statute, acknowledged the consideration-money occupant. [Willes, 506.] in the above conveyance to be the proper money of IV. Atkinson, the plaintiff's intestate, and that the name of Williams was made use of in the conveyance in trust for W. Atkinson, his heirs, executors, administrators, and assigns. That Williams delivered the deeds and memorandum to W. Atkinson, who thereby became possessed of them, and who afterwards died intestate; on which administration was granted to the plaintiff, who thereby became lawfully possessed of the deeds, &c. and, being so possessed, afterwards lost them; and that they came into the possession of the defendant, who is the heir at law of W. Atkinson, and who still detains them. To this declaration there was a general demurrer and joinder. Johnson in support of the demurrer, insisted that the plaintiff was not entitled to the deeds, the defendant being a special occupant of the estate. Prior to the statute 29 Car. 2. c. 3. every estate pour auter vie, of which there was no special occupant marked out by the grant, belonged to the person who first took possession of it. But this being found inconvenient, that statute was passed to remedy it; and it enables (a) the proprietor to devise it, and enacts, That if no devise be made, it shall be chargeable in the hands of the heir, if it come to him by reason of a special occupancy, as assets by descent, as in case of lands in fee 1791. ATKINSON against BAKER. simple; and in case there be no special occupant, it shall go to the executors or administrators, and be assets in their hands. As doubts arose to whom the surplus of such estates should go after paying the intestate's debts, when they were not devised, the 14 Geo. 2. c. 20. s. 9. enacted, that such estates pour auter vie, in case there be no special occupant thereof, of which no devise has been made by virtue of the 29 Car. 2. should be distributed as personalty. Now those statutes only apply to the cases of a vacant possession: but here there was a special occupant, namely, the heir of W. Atkinson. If it be contended, that the administratrix of W. Atkinson may take this as a special occupant, and 2 Vern. 719. 3 Atk. 466. and Carth. 376. be cited, it may be answered, that the plaintiff, as the administratrix, might have taken if it had not been limited to Atkinson's heirs. But it never has been held in a case where a freehold is limited to a man, his heirs, executors, and administrators, that the latter can take to the exclusion of the heirs. Gardiner, contrà, contended, that the defendant was not entitled to retain these deeds; 1st, Because he claims only under the declaration of trust, of which this Court will not take notice, Doe d. Gibbons v. Pott (a), it not being the case of a clear trust; or, 2dly, Because the state vested in the administratrix, in favour of the creditors at large, and not in the heir at law, the limitation to the administrators being repugnant to that of the heirs. That though the heir at law is entitled to favour in preference to a devisee, yet he is not favoured under the statute of frauds. 2 Atk. 151; and that if this estate vested in the heir, it would only be liable to specialty debts, whereas if the administratrix were entitled, she would hold it for all the creditors of the intestate. Lord KENYON, Ch. J.-The law on this subject has been truly stated by the defendant's counsel. If an estate pour auber vie be limited to a man, his heirs and assigns, and if it be not devised, it goes to the heir under the statute of frauds, and is liable to the same debts as a fee-simple is. Where it is granted to a person, his executors, administrators, and assigns, the executors take it subject to the same debts as personalty of any other description is; and by the 14 Geo. 2. it is distributable. Now in this case, before the plaintiff can recover the deeds in question, she must shew a title to the estate in respect of which she claims the deeds: but she objects to the defendant's retaining them, because his title, if any, is only equitable, and cannot be inquired (a) Doug. 695. into in a Court of Law. Now, this Court either has or has not (a) Vid. Doe d. Blake v. Luxton, post. 6 vol. 289. 1791. ATKINSON against BAKER. PEARCE and Another against TAYLOR. Friday, May 20th. has lost the be agent, may after the 26 Geo. 3. 6. UPON PON application for the discharge of an insolvent debtor A prisoner, who out of custody, under the lords' act (a), it appeared, That nefit of the lords' he had been charged in execution on the 16th October, 1789: act (32 Geo. 2. c. 28.) by the that in Michaelmas Term following, he had given the proper no- misconduct of an tice to the plaintiffs required by the above-mentioned act pre- wards be disparatory to his discharge; but having employed an agent to charged under pursue the subsequent steps necessary to entitle himself to take 44.1.5. provides relief advantage of the act, which the agent had failed to do, he had for those who been in consequence remanded. In Michaelmas Term 1790, he have neglected made a similar application to the Court, by virtue of the Geo. 3. c. 44. which extends the provisions of the former statute; and having then complied with the requisitions of the (a) 32 Geo. 2. 6. 28. 26 to take advan tage of the forignorance or mis mer act through take. [1 H. Bl. xox. 7 East. 84.] act, 1791. PEARCE against TAYLOR. act, the only question (a) was, Whether, under the fifth section of the 26 Geo. 3. the prisoner could make oath that he had neglected to take advantage of the former statute from ignorance or mistake. That section enacts, "That where any "debtor as aforesaid shall have neglected to take the benefit "of the said act within the time limited by the said act, and "shall have remained in prison by the space of one year (b), "and shall make it appear to the Court out of which such exe"cution issued that such neglect arose from ignorance or mis"take, such debtor shall then be entitled to take the benefit of "the said act, as if he had taken the same within the time by "the said act so limited as aforesaid." Baldwin, for the plaintiffs, contended, That the prisoner could not take the necessary oath; because it manifestly appeared that he had not neglected to get discharged from his own ignorance or mistake, but through the misconduct of the agent whom he employed: and if the ignorance or misconduct of third persons were sufficient to enable the prisoner to take the benefit of the act, it would be opening a great door to fraud. Garrow, for the prisoner, said, That the construction contended for would restrain both the words and meaning of the statute; for it would be confining these applications to cases where the neglect had arisen from a man's own ignorance or mistake; whereas a person in custody must act through the intervention of others; and therefore it is most probable that the Legislature meant to give relief in cases where the first application failed from the ignorance or mistake of the agent, as well as from the prisoner's own ignorance or mistake. Lord KENYON, Ch. J.-Even if the neglect arose from the misconduct, and not merely from the ignorance or mistake of a third person, I should think that, as to the party himself, it was fairly referable to the words and meaning of the act; as to him, it may be called ignorance or mistake, if he fairly meant to do what the law required of him. ASHHURST, J.-The wording of the act in this manner was with a view to prevent a defendant taking advantage of any wilful neglect or misconduct of his own. BULLER, J.-Even if the neglect were wilful on the part of (a) Another question was at first made, Whether it were necessary for a prisoner, in order to entitle himself to be discharged under the 26 Geo. 3. c. 44. to apply within the first term after the expiration of a year's imprisonment, which arose from a misapprehension of the fact ?—and therefore when that was explained, the Court declined giving any opinion upon it. (6) Vide note (a) sup. the the agent employed, yet if the defendant were not privy to it, but did every thing in his power to comply with the requisitions of the act, it is as to him imputable to mistake. GROSE, J.-The words "ignorance or mistake" are used in this act of parliament in contradistinction to "fraud and deceit." Ordered that the prisoner be brought up (a). (a) Vid. Vaughan v. Durnell, post. 367. 1791. PEARCE against TAYLOR. The KING against The Master and Fellows of SAINT no special visi right of visita tion, in default devolves upon A case a RULE was granted in the last term, calling upon the de- In the case of a private eleemofendants to shew cause why a mandamus should not issue, synary laycommanding them to declare the fellowship of the Rev. Joshua foundation, if Wood vacant; and to proceed to the election of another fellow. tor be appointed by the The college was founded and endowed by Doctor Wodelarke, founder, the who gave certain statutes; and the foundation, which consisted of a master and fellows, was confirmed and incorporated by letters patent of the 15th of Ed. 4th. Mr. Wood, a fellow of this college, was, about two years ago, inducted to the vicarage of the great seal. Madingley, in the county of Cambridge, situated at the distance On this ground the King is the of three miles and an half from the University: the acceptance visitor of St. of which living, it having the cure of souls, and being of the Hall, Camvalue of above ten marks (a) a year in the King's books, it was this Court rebridge; and contended, vacated his fellowship. many In 1549, Edward the 6th sent down by commission several visitors to Cambridge, to alter and reform the statutes of of the colleges in the University, and (amongst others) of this college and the defendants deposed, That ever since that time (except for a short period in the reign of Queen Mary, as to some part) the college has been governed by the statutes, as revised and altered by those visitors. Every fellow on his election swears, That he will observe the statutes. The statutes, with the usage thereon, were set forth in the affidavits. A letter missive was also stated from Charles 2d to the college in 1664, whereby his Majesty granted his royal dispensation to Brunning, one of the fellows, to hold a living of upwards of ten marks in the King's books with his fellowship, which he did accordingly: and another instance of the same sort in the same reign was adverted to and admitted; which latter was not stated in the affidavits. (a) The living was 50%. a year, and upwards. the King, to be exercised by Catherine's fused to interfere by manda mus, to compel the master and fellows to declare one of the fellowships vacant, and to proceed to a new election. |